Idem PAP LOC now claimform - 1995 MBNA Card debt ***Claim Dismissed***

[AndyOrch]

You must respond to the Pre Action protocol Forms....but use ours not theirs.

 

Andy

[AndyOrch]

Let them litigate.....hope they can comply with your CCA request by the time any hearing date comes around.

[AndyOrch]

Thread moved to Financial Legal Issues Forum in view of the court claim.

 

Please read the following link and the  copy and paste the Q,s and your responses back here for further advice.

 

 

 

Andy

[AndyOrch]

Defence checked and amendments made where necessary. in post # 29....please check for accuracy.

 

Andy

[AndyOrch]

 

[AndyOrch]

Check with MCOL and your court to see if any applications have been made.......as far as I'm aware you cant stay a small claims claim on allocation...only Fast Track claims N181.

If they wished to delay proceedings then they shouldn't have informed the court to issue directions questionnaire.....or issue a claim if they are not in receipt of all the relevant documents.

 

Andy

[AndyOrch]

I would check the status again say next Monday

[AndyOrch]

   Swamped with all the speculative claims the DCAs issue around this time of year trying to get money in for year end. You have proof of postage so your covered.

[AndyOrch]

Very good news....lets see if they can comply by the date .....otherwise its struck out.

 

Andy

[AndyOrch]

What date is on the Particulars of Claim ?....only goes up to point 9.

[AndyOrch]

They complied with the order ...just by date....so not struck out....

 

The court will advise next...possibly allocation of the claim.

 

 

[AndyOrch]

Yes to local court ...the court that sent the order...but you have covered all the information from who ....So I assume its your local county court.

 

Your defence will now be in depth with the in depth particulars and why you dont accept that they have complied...or why the agreement is invalid etc etc...

 

Andy

[AndyOrch]

Just a copy of their particulars and your new draft in response thanks Neeta.

 

Andy

[AndyOrch]

########Defence#########

 

Further to the court order dated 11th March 2020 I the defendant in this claim submit this amended defence in response to the further particularised particulars served by the claimant again in response to the above said order.

 

The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1.    Paragraph 1 is noted the attachment referred to is an application form, which refers the applicant to sign and return the agreement. It is provided along with a set of random terms and conditions which are also void of an account number or date to which it supposedly refers to. It is therefore denied that the claimant has attached a copy of the original signed agreement.

 

2.   Paragraph 2 is noted and accepted.

 

3.   Paragraph 3 is denied. Condition 15 (vii) of the attached terms and conditions re assignment.The claimant cannot prove that the alleged Terms and Conditions are connected to the agreement.There is no reference on the application form connecting it to the Terms and Conditions.

 

4.   Paragraph 4 is denied. Moorgate Loan Servicing cannot be considered the creditor or assignee and as a third party only administrating are not legally able to serve a Default Notice pursuant to sec 87(1) of the CCA1974 on behalf of Britannica Recoveries SARL.However  A ‘copy’ Default Notice was sent to me after my request for this document, this was not issued by the original creditor MBNA, was dated 6^th May 2014 and was on IDEM letter headed paper. IDEM did not purchase the balance of the account until November 2016.

 

5.  Paragraphs  5- 9 are noted.

 

6. Therefore as the claimant is unable to provide a valid copy of the fully executed agreement which contains all the prescribed terms and conditions pursuant to CCA1974 and The Consumer Credit (Cancellation Notices and Copies of Documents ) Regulations 1983 they are prohibited from enforcing the alleged agreement until such time they can comply.  It is therefore requested that since the Claimant has failed to comply with PD16.7.3 that the claim is struck out as per the order dated 24 January 2020 from District Judge xxx sitting at the County Court xxxx  

 

[AndyOrch]

No dont add anymore...this is an initial defence response...you can expand later if they wish to proceed to allocation within your witness statement.

[AndyOrch]

States on the Order " File and serve "....so court and claimants sol.

[AndyOrch]

Wait for a hearing.....attend in person.

 

Andy

[AndyOrch]

By the 3rd July.....file and serve statement and docs.

 

Andy

[AndyOrch]

The penalty charge for defaulting Neeta.......

[AndyOrch]

I wouldnt worry about it....IDEM wont have a clue what you are going on about and its history with regards to MBNA. I would advise you remove point 6 above...adds nothing to your statement and may go against you.

[AndyOrch]

I wouldn't muddy the waters with the second MBNA Agreement...adds nothing to your defence ...keep to the particulars of claim add nothing.

Its irrelevant whether payments have been previously made and do not support any question of whether the agreement is enforceable ...thats in the past...this is now and have they got all the valid paperwork to support their claim.

 

Im going to rejig your statement as it does not flow correctly....

 

Headers and footers as per guidance...

1.      I make this Witness Statement in support of my defence in this claim.

 

2.  On or around 14/11/19, I received a claim form from the County Court Business Centre, Northampton, for the amount of £5700.36.

The claimant contends that the claim is for the sum of £5700.36 in respect of monies owing under an alleged agreement with the account no. ******* pursuant to The Consumer Credit Act 1974 (CCA).

 

3.  Contained within the claimants particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA.

 

4.  I understand that the claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

5.  As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

History

 

6.  In September 2018 I had reason to check my online credit records and noted a default on my account which I was unaware of. As guided by the credit report I contacted IDEM at the time and requested information regarding these defaults.

 

7.  I did not agree with the reasons I was given for the defaults being on my account so I sought advice and as a result in January 2019 I sent IDEM Capital Securities Limited a Credit Card Agreement Request pursuant to Sections 77 – 79 of the Consumer Credit Act.

 

8.  I received a letter dated 10th January returning my £1.00 postal order and stating I would receive a response within 12 days. Attachments xx

 

9.  I received a further letter dated 19th March from IDEM stating they had now found the CCA and enclosed a copy of an application form with generic terms and conditions that they state was for the amount and account on which this claim is based. (Exhibit 1a)

 

10. The application form and terms and conditions I received are attached.

 

As per Section 61 (1) of the Consumer Credit Act (1)A regulated agreement is not properly executed unless:-

 

(a)A document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the creditor or owner,

The application form does not contain a reference or account number and the terms and conditions are generic in format, contain no identifying references and may or may not apply to the account. 

 

11. With regards to their various responses to the requests detailed above the claimant has produced what they describe ‘Copy’ of the default notice.They provided a version of a default notice on IDEM letter headed paper and stamped ‘COPY’ their argument that this was an administration error and accidentally printed on IDEM headed paper does not hold weight where additional documents originally sent by Moorgate were sent on Moorgate headed paper.

 

12.I argue that this is not in fact a COPY of an original default notice, that they state was issued during May 2014, but that this is a fabricated version of a default notice created by IDEM. Either way the default notice was not issued by the original creditor (MBNA)

 

13.  It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(1) Service of a notice on the debtor or in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor of a regulated agreement.

 

Conclusion

 

14.  The Claimants pleaded case is that the Defendant entered into an agreement with MBNA. I have in fact had a few different agreements with them in the past and it would appear that the claimant is mixing two different agreements and using incorrect amounts to support its claim.

 

15.  As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim is based and relies upon.

 

16.  Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

17.  Therefore, for the above reasons the claim bought by the claimant is without merit and an abuse of the court process.

It would be far gracious and forthright for the claimant to admit that they do not have possession any valid paperwork and this is an attempt to convince the court that the claimant can disclose the legal valid documents on which its claim relies on.

 

SOT

 

Signed date.

 

 

 

 

 

 

 

[AndyOrch]

[AndyOrch]

Any document that you have referred to in the statement and wish to rely on as evidence must be attached and marked on the statement correspondingly ...(Exhibit 1...Exhibit 1a.....Exhibit 1b ....etc...see point 9 above in the statement.

[AndyOrch]

That does not make sense Neeta...does it not state.....?

 

" Unless both parties confirm agreement to the case not  being determined on the papers the claim will be removed from the list and adjourned to a later date. " 

[AndyOrch]

It does.....but it also states that within 14 days of the date of the order you should inform the court if you agree it should be determined on papers only...that being 15th June ?